Idaho can enforce a first-of-its-kind “abortion trafficking” law against those who harbor or transport a minor to get an abortion out of state without parental consent, a federal appeals court ruled on Monday.
But the San Francisco-based 9th US circuit court of appeals in its ruling blocked a part of the law that prohibits “recruiting” a minor to get an abortion.
Idaho, which bans abortion in nearly all cases, passed the abortion trafficking law in 2023. It made “recruiting, harboring, or transporting” a minor with the intention of helping her get an abortion and conceal it from her parents or guardians a crime punishable by two to five years in prison – even if the abortion took place in a state where abortion is legal.
Lourdes Matsumoto, a lawyer and advocate who works with victims of sexual violence, and two groups that support abortion rights sued the state to challenge the law soon after it was passed.
They argued that the law violated their right to free speech under the first amendment of the US constitution and that the threat of prosecution prevented them from counseling minors seeking abortions.
The circuit judge M Margaret McKeown wrote for the majority that harboring and transporting were not speech, partly reversing a lower court order that had blocked the entire law.
However, she wrote that recruiting could include “a large swath” of speech protected by the first amendment, “from encouragement, counseling and emotional support; to education about available medical services and reproductive healthcare; to public advocacy promoting abortion care and abortion access”.
“Encouragement, counseling and emotional support are plainly protected speech under supreme court precedent,” McKeown wrote, “including when offered in the difficult context of deciding whether to have an abortion.”
McKeown said that while speech can be restricted if it is part of a crime, it is not a crime for a resident of Idaho to get an abortion in a state where it is legal.
“Idaho’s asserted police powers do not properly extend to abortions legally performed outside of Idaho,” she wrote.
Both sides claimed victory in the ruling.
The Idaho attorney general, Raúl Labrador, in a statement called the ruling “a tremendous victory”, adding: “We will not stop protecting life in Idaho.”
Wendy Heipt, a lawyer for the plaintiffs, said in a statement that the ruling was “a significant victory for the plaintiffs, as it frees Idahoans to talk with pregnant minors about abortion healthcare”.
McKeown was joined by the circuit judge John Owens. Both were appointed by Democratic presidents. The circuit judge Carlos Bea, an appointee of Republican former president George W Bush, dissented, saying that the entire challenge to the law should be dismissed because the plaintiffs sued Labrador rather than the local prosecutors tasked with enforcing the law.
Idaho’s abortion ban provides only permits the procedure in medical emergencies and in cases of rape or incest that are reported to police. It is one of the strictest abortion bans in the country.
Idaho borders Washington, Oregon and Montana, which have much more permissive abortion laws.
More than 20 Republican-led states have banned or restricted abortion since the US supreme court in 2022 reversed Roe v Wade, the court’s 1973 precedent that had established a right to abortion nationwide. In the years since, Idaho has become a frontline in the US abortion wars. The supreme court recently heard arguments in a case involving the state’s abortion ban, while a handful of women have filed a lawsuit in state court to broaden the exceptions outlined in the ban.
Legislators in at least four other states have also introduced bills to ban “abortion trafficking”. One state, Tennessee, has passed it, although a court later blocked that law from taking effect.
